MEDIA RELEASE 19 February 2021
Victorian Aboriginal Legal Service (VALS)

Important Step Towards Justice for Tanya Day

What happened to Tanya Day was a tragedy. That tragedy has been compounded because the Day family have had to fight for justice for so long. Their perseverance and courage are remarkable.

The Victorian Government today passed a Bill that decriminalises public drunkenness. The enormous advocacy work done by the Day family has been the key factor that led to this achievement. VALS thanks the Victorian Government and the Victorian Parliament for passing this Bill. It is a small step on the way to justice for Tanya Day.

It is 30 years since the Royal Commission into Aboriginal Deaths in Custody recommended this reform. Victoria is one of the last jurisdictions in Australia to implement this recommendation. Many Aboriginal people have died in custody while we wait for governments to implement all the recommendations of the Royal Commission.

The reform will require significant public health initiatives to be implemented to make it successful. VALS will fight to ensure the Victorian Government includes Aboriginal people in the consultation process for these public health initiatives, particularly the families of loved ones who have died in custody.

We again ask the Victorian Government to properly fund Aboriginal Community Controlled Organisations (ACCOs) to help with the proper implementation and oversight of these reforms. They should also properly fund ACCOs to address the over policing of Aboriginal people due to the increased powers given to the police during the pandemic.

True Justice for Tanya Day requires accountability. However, the Office of Public Prosecutions made the decision to not proceed with charges against the officers involved in Tanya Day’s death.

The Victorian Government has also not delivered on crucial reforms to increase accountability for those responsible for the lives of people held in custody. This includes implementing OPCAT, in accordance with its obligation to set up detention oversight bodies to prevent the torture and ill-treatment of detained people (including people detained in police vehicles).

Quotes Attributable to Nerita Waight, CEO of Victorian Aboriginal Legal Service

“The strength of Tanya Day’s family gives me hope. There is still a long way to go until there is real justice for Tanya Day, but we have come this far because of them.”

“The Victorian Government deserves credit for finally decriminalising public drunkenness, but there is still a lot of work to do and they must not rest on their laurels. Aboriginal people will continue to die in custody if these reforms are not properly implemented.”

“We also need the Victorian Government to proceed with a more ambitious reform agenda that brings greater accountability to policing and the carceral system.”

“We hope the Victorian Government stops wasting money on prison cells and starts spending it on empowering Aboriginal communities.”

Media inquiries

Patrick Cook
Senior Communications and Media Officer
0417 003 910

To determine eligibility VALS will:

  • enquire as to the Aboriginality of the client;
  • enquire as to perceived or actual conflict of interest;
  • enquire as to compliance with the Means Test;
  • consider the merit of the client’s matter.

The first time someone uses VALS they must provide proof of their Aboriginality using the Confirmation of Aboriginality Form. This form must be signed and sealed by the Officer Bearers of a recognised Aboriginal and Torres Strait Islander organisation.

VALS must not decline to provide assistance to an eligible person, group or body on the grounds that the other party to the matter is an Aboriginal and/or Torres Strait Islander person. In circumstances where the relationship between the parties to a case would result in a conflict of interest, that conflict must be managed in accordance with the Victorian Legal Practice requirements and Policy Direction 9 – “Managing Conflicts of Interest” – of the Attorney-General’s Department Policy Directions for the Delivery of Legal Aid Services to Indigenous Australians (2008).

VALS will not act if a conflict of interest exists. A conflict of interest may be an ‘actual’ conflict of interest or a ‘perceived’ conflict of interest. A conflict of interest can involve:

  • Clients who have different interests, such as VALS may have advised or acted for person “A” (old client) who has an interest that conflicts with person “B” (intended new client).
  • Clients and VALS, such as a VALS staff member or Board Member has an interest that conflicts with an intended new client. Conflicts involving client-provider relationships are:
    •  An owner, director, manager, employee, contractor or agent of VALS and/or;
    • An employee of the Department; and/or
    • A close relative (spouse, de facto, parent, sibling or child) of any of the above.

VALS provides assistance on a first in best dressed basis (i.e. provide direct assistance to the party who approaches VALS first). VALS will refer the other party to another legal service provider or “brief out” the client to a private lawyer (subject to the client meeting the requirements for brief outs). Where appropriate, VALS may act for one client and provide assistance by brief out to the other.

Means Test
Where a person seeks casework assistance, VALS must ensure that applicants satisfy the Means Testing provisions of the Policy Directions.

VALS must ensure that all applicants for legal casework assistance satisfy one or more of the following requirements:

  • Under 18 years of age;
  • Main source of income comes from Community Development Employment Projects; (CDEP) participant wages or Centrelink (or equivalent) benefits; or
  • Gross household income is under $52,000 per annum.

Note: Household income includes the income of your partner, spouse, relative including an adult child who you live with.

The Means Test will be administered in two parts:

Part A: Requires the completion of a small number of questions relating to the applicant’s personal circumstances and income level.

Part B: Is required where applicants do not satisfy the criteria in Part A. It requires more detail about the applicant’s income, assets, employment status and number of dependents.

Merit Test
Discretion will be used to determine if a particular case has merit.